I BEG TO DIFFER:
Taking Account of National Circumstances
under the Paris Agreement, the ICAO
Market-Based Measure, and the Montreal
Protocol’s HFC Amendment
By Susan Biniaz
January 2017
© 2017 Sabin Center for Climate Change Law, Columbia Law School
The Sabin Center for Climate Change Law develops legal techniques to fight climate change,
trains law students and lawyers in their use, and provides the legal profession and the public
with up-to-date resources on key topics in climate law and regulation. It works closely with the
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Disclaimer: This paper is the responsibility of The Sabin Center for Climate Change Law alone, and does
not reflect the views of Columbia Law School or Columbia University. This paper is an academic study
provided for informational purposes only and does not constitute legal advice. Transmission of the
information is not intended to create, and the receipt does not constitute, an attorney-client relationship
between sender and receiver. No party should act or rely on any information contained in this White Paper
without first seeking the advice of an attorney.
About the author: Susan Biniaz has been the lead climate change lawyer for the U.S. Department
of State since 1989. The views expressed in this article are those of the author and are not
necessarily those of the U.S. Department of State or any other department or agency of the U.S.
Government. The author thanks current and former colleagues for their review and comments.
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CONTENTS
1. Introduction ...........................................................................................................1
2. Participation ...........................................................................................................2
2.1 Voluntary Self-Selection ....................................................................2
2.2 Everyone In – Minus ...........................................................................6
3. Nature of Commitment .......................................................................................7
3.1 One Formula / Different Impacts ......................................................7
3.2 Five Groupings .....................................................................................9
3.3 Self-Differentiation .......................................................................... 12
3.4 Flexibility for a Sub-Group ............................................................. 13
4. Special Consideration ....................................................................................... 15
5. Assistance ............................................................................................................ 16
6. Other Provisions of Note ................................................................................. 17
7. Conclusion .......................................................................................................... 18
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1. INTRODUCTION
Within less than a year, States reached agreement on three major climate change-
related instruments: the Paris Agreement,1 the International Civil Aviation Organization
(ICAO) Resolution on a global market-based measure to address international aviation
emissions, 2 and the Kigali Amendment to the Montreal Protocol to phase down
production and consumption of hydrofluorocarbons (HFCs).3 What is remarkable about
these three instruments is not only the short period of time in which they were all
completed (and, in the case of the Paris Agreement, entered into force), but the variety of
methods by which negotiators took account of different national circumstances in
formulating commitments and other aspects of cooperation.
The issue of “differentiation,” or the extent to which an instrument makes
distinctions among States in setting out commitments and other features, has been a
particularly salient and controversial one in the climate change arena. The foundational
UN Framework Convention on Climate Change set forth a general principle regarding
“common but differentiated responsibilities and respective capabilities” and established
several categories of countries, including those that are or are not listed in Annexes I and
II. 4 However, all Parties had commitments and, except with respect to finance, the
distinctions among such commitments were relatively minor. The Kyoto Protocol
radically changed the differentiation narrative by placing legally binding emissions
commitments on “Annex I” Parties and essentially excluding all other Parties from any
new commitments.5 Kyoto’s stark divide between the two categories of Annex I and non-
Annex I Parties (also referred to, somewhat less accurately, as “developed” and
1 See http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf. 2 See http://www.icao.int/Meetings/a39/Documents/WP/wp_530_en.pdf. 3 See https://treaties.un.org/doc/Publication/CN/2016/CN.872.2016-Eng.pdf. 4 See Preamble, Article 3 (“Principles”), and Article 4 (“Commitments”), of the UNFCCC,
http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf. 5 See https://unfccc.int/resource/docs/convkp/kpeng.pdf.
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“developing” countries) was a major reason why the United States did not join the
Protocol and led to many years of diplomatic wrangling. Even the word “differentiation”
was a source of contention; some used it as shorthand for the proposition that “developed
countries must take on binding commitments, while developing countries may engage in
voluntary actions,” which irritated others.
Nearly twenty years later, the Paris, ICAO, and HFC instruments all fall far from
the Kyoto tree. They reflect a wealth of approaches to addressing various national
circumstances, including in relation to participation in the regime per se, the nature of
commitments, the timing of commitments, the need for assistance, and other features.
There is substantial variety in approaches to differentiation both within each of the
three instruments and among them. What all of them have in common is how they
pragmatically answered the need for accommodation, whether demanded by logic,
fairness, limited capacity, or simple negotiating leverage. Further, they have significantly
expanded the arsenal of differentiation tools available to negotiators in the future, in the
climate world and other spheres where appropriate.
2. PARTICIPATION
2.1 Voluntary Self-Selection
ICAO’s Carbon Offsetting and Reduction Scheme for International Aviation
(CORSIA), adopted at the ICAO Assembly on October 6th, 2016, provides for the aviation
sector to offset its international CO2 emissions above 2020 levels by buying credits from
outside the aviation sector. The scheme had its origins in widespread opposition to the
EU’s inclusion in its emission trading scheme of flights to and from EU territory. The U.S.-
brokered compromise reached in 2013 was, on the one hand, that the EU would suspend
its law and, on the other, that ICAO Member States would develop a global market-based
measure for international aviation, for decision at ICAO’s 2016 Assembly. The 2013 ICAO
Resolution called for a scheme that took into account “special circumstances and
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respective capabilities.” 6 Recognizing ICAO’s time-honored principle of non-
discrimination, the new scheme was also to minimize market distortion.7
Negotiations did not begin in earnest until the Paris Agreement was concluded.
Before that point, States had been either too busy with the Paris negotiations or concerned
about prejudicing those negotiations indirectly through ICAO positions and outcomes.
Once negotiations were re-invigorated, the main issues roughly divided into “who,”
“what,” and “when.”
The “when” issues were the least controversial. It was broadly agreed at the outset
that the scheme would operate, at a minimum, for fifteen years, from 2021 to 2035, before
States considered an extension. The most divisive issues related to the proposal for a
“pilot” phase, including how long such a phase would last. It was ultimately agreed to
divide the fifteen years into three time periods:
o an initial three-year “pilot” phase;
o a subsequent three-year “first phase;” and
o a nine-year “second phase.”8
In contrast, the “who” and “what” were hotly debated. In terms of “who,” it was
widely accepted that there should be some kind of differentiation among States when it
came to participation in the early phase(s) of the scheme. However, there was no
agreement on which criteria should apply to determine which States would go first:
o Many States considered that the level of aviation activity of a State’s carriers
(expressed in terms of “Revenue Tonne Kilometers,” or RTK) should be the
deciding criterion. Others agreed that such activity was relevant but thought
that it needed to be combined with another criterion based on a State’s level of
development.
6 See paragraphs 19 and 20 of the 2013 ICAO Assembly Resolution, http://www.icao.int/Meetings/GLADs-
2015/Documents/A38-18.pdf. 7 See paragraph 20 of the 2013 ICAO Resolution. 8 See paragraph 9 of the 2016 ICAO Resolution.
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o A proposal to couple aviation activity with gross national income (GNI) per
capita was opposed, largely out of concern that the use of such a criterion in
ICAO would create a precedent for other international fora.
o A proposal to combine aviation activity with the ICAO’s scale of assessment was
also opposed, in part because the scale already factors in aviation activity and
would end up counting that criterion twice.
o A proposal that “developed” countries should go first was opposed on the
grounds that several developing countries have high aviation activity and/or
that the Paris Agreement had moved beyond differentiating commitments on
the basis of a developed/developing country divide.
Given the difficulty of agreeing on the applicable criteria, a criteria-free alternative
was considered. Early participation would be based on a quasi-negotiated voluntary list.
The list could be attached to the Resolution or somehow otherwise reflected in the
outcome of the Assembly. While background factors would likely inform the list – and the
key States would, de facto, need to be on it -- the list itself would not reflect any criteria;
that way, no precedents would be created, and each State could explain its
inclusion/exclusion, and the inclusion/exclusion of others, as it saw fit.
This approach gained some traction, but was ultimately not successful. It was
difficult to discuss who would be on the list without looking at a notional list. At the same
time, various attempts to create such a list proved to be too politically sensitive. Although
it was clear that notional lists were just that – notional – and drawn up simply for
purposes of discussion, several States that found themselves on such lists were not
comfortable continuing the exercise.
Quite apart from who would ultimately be on the list, some States also had a
concern about the existence of any list. However devoid of criteria, a list might give the
appearance of creating a new climate-relevant category of States.
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In the end, the solution was a purely voluntary opt-in approach. The Resolution
strongly encouraged all ICAO Member States to “voluntarily participate” in the pilot
phase and first phase.9 The decision whether or not to participate could be made on
whatever basis a State chose. Several aspects of the “volunteering” approach are worth
noting:
o The Secretariat is to maintain “information” on volunteering States (rather than
a “list”) on the ICAO website.10
o Due to the insistence of a few States, a State may “un-volunteer” (i.e.,
discontinue its participation) at certain intervals.11 There was initial criticism of
the inclusion of this option. However, it is possible that it will result in greater
participation, given the reluctance of some States to volunteer if they do not
have the option to back out.
o It is important to emphasize that it is a State’s participation that is voluntary,
rather than its implementation; once a State has volunteered, it is expected to
implement the offsetting requirements as set forth in the Resolution and further
elaborated by ICAO.
There was some initial skepticism that a voluntary approach would result in
sufficient participation. In order for the scheme to be viable, the pilot and first phases
needed to cover enough emissions to be environmentally meaningful, as well as attract the
right States from both political and competitiveness points of view. For China and others,
it was important to have “developed countries” volunteer; for the United States and
others, it was important to have on board the countries with high aviation emissions,
whatever their development status. However, various early announcements of States’
intention to participate provided an important catalyst, including the North American
9 See paragraph 9(c) of the 2016 ICAO Resolution. 10 See paragraph 9(d) of the 2016 ICAO Resolution. 11 See paragraph 9(f) of the 2016 ICAO Resolution.
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Climate, Clean Energy, and Environment Partnership Action Plan,12 a joint U.S.-China
announcement,13 and a declaration by European and Central Asian States (ECAC).14 15 As
of October 12th, 2016, sixty-six States (representing 86.5% of international aviation activity)
had volunteered to participate in the scheme from its outset (i.e., the pilot phase).16
2.2 Everyone In – Minus
Reaching agreement on which States would participate in the second phase of
ICAO’s market-based scheme was also controversial. There was broad agreement in
principle that, after the pilot phase and first phase, all States would be expected to
participate except those explicitly carved out. The question was which States would be
exempted.
Negotiators were readily able to agree to exempt the categories of least developed
countries (LDCs) and landlocked developing countries (LLDCs). Both of these are
established categories.17 After some consideration, negotiators also agreed to exempt the
established category of small island developing States.18
12 See https://www.whitehouse.gov/the-press-office/2016/06/29/north-american-climate-clean-energy-and-
environment-partnership-action. 13 See http://beijing.usembassy-china.org.cn/us-china-climate-change-cooperation-outcomes-2016.html. 14 See the Bratislava Declaration, http://www.icao.int/environmental-protection/Documents/2016-
BRATISLAVA_DECLARATION.pdf. 15 The many announcements made before the ICAO Assembly’s adoption of the Resolution enabled the
United States and China to reach pragmatic agreement on a sentence for inclusion in the Resolution.
Paragraph 9(c) provides: “All States are strongly encouraged to voluntarily participate in the pilot phase
and the first phase, noting that developed States, which have already volunteered, are taking the lead, and
that several other States have also volunteered.” The sentence satisfied China’s need for some kind of
reference to “developed” countries “taking the lead.” At the same time, it satisfied the U.S. need to avoid a
bifurcated approach (i.e., all States are encouraged to volunteer, not developed countries in particular); to
have any reference be factually descriptive, rather than prescriptive; and to note that developing countries
had volunteered along with developed countries. 16 See ICAO website, http://www.icao.int/environmental-protection/Pages/market-based-measures.aspx. 17 See http://www.un.org/en/development/desa/policy/cdp/ldc/ldc_list.pdf and
http://unctad.org/en/pages/aldc/Landlocked%20Developing%20Countries/List-of-land-locked-developing-
countries.aspx. 18 See https://sustainabledevelopment.un.org/topics/sids/list.
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It was also widely accepted that the remaining exemption should be based on
international aviation activity. However, the exact threshold was the subject of intense
debate for at least two reasons. The cut-off for participation would affect the overall
environmental effectiveness of the scheme. It would also end up including or excluding
particular countries, which in turn raised competitiveness issues in various regions.
Ultimately, there was agreement on an aviation activity-based threshold for
participation in the second phase, in addition to the three categories above. 19 It is
interesting to note that, while negotiators were not able to agree on an aviation activity-
based threshold as an affirmative basis for participation in the pilot and first phases (see
above), such a threshold was acceptable as the basis for an exemption from participation in
the second phase.20
3. NATURE OF COMMITMENT
3.1 One Formula / Different Impacts
The ICAO scheme, in addition to reflecting differentiation in terms of “who”
participates when, also differentiates in terms of “what.” It was widely agreed upfront
that the scheme would involve offsetting growth in CO2 emissions from international
aviation from 2020 levels, but the controversial question was how to allocate the
requirement to offset such growth among various States/airlines.
There were at least four schools of thought:
19 See paragraph 9(e) of the 2016 ICAO Resolution, which provides that, with the exception of LDCs, LLDCs,
and SIDS, the second phase applies to “all States that have an individual share of international aviation
activities in RTKs in year 2018 above 0.5 per cent of total RTKs or whose cumulative share in the list of States
from the highest to the lowest amount of RTKs reaches 90 per cent of total RTKs….” 20 Note that, per paragraph 9(e), exempted States are free to volunteer to participate, and some (e.g., the
Marshall Islands and Papua New Guinea) have volunteered to participate in the scheme from its outset. See
http://www.icao.int/environmental-protection/Pages/market-based-measures.aspx.
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o A few States considered that each State (or possibly airline) should decide for
itself how much to offset. Such an approach, it was argued, would be most
consistent with the Paris Agreement’s “nationally determined” approach to
mitigation efforts (discussed below).
o Most States considered that, in light of the Chicago Convention’s principle of
non-discrimination, as well as competitiveness concerns within the sector, the
offset requirements should be internationally determined. However, they
disagreed about how.
o Some thought each airline should offset its own individual CO2 emissions
growth post-2020.
o Others considered that airlines should share in offsetting the sector’s
global growth in emissions, because an individual approach would
unfairly disadvantage fast-growing airlines and, correspondingly,
unfairly advantage established airlines that had emitted significant CO2
emissions pre-2020.
o A few States argued that offset requirements applicable beyond the pilot phase
should be decided only after, and on the basis of, a post-pilot phase review.
Negotiators eventually split the difference and agreed on a “dynamic” approach
that initially allocates offsetting requirements based 100% on a global growth factor and
moves over time to a more and more individual approach:
o During the pilot phase, first phase, and first three years of the second phase,
participating airlines will be required to offset covered emissions based on
global growth in emissions.
o During the next three years, “at least 20%” of the offsetting requirements of
participating airlines will be based on their individual growth (i.e., at most 80%
of their requirement will be based on global growth).
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o During the last three years, “at least 70%” of the offsetting requirements of
participating airlines will be based on their individual growth (i.e., at most 30%
of their requirement will be based on global growth).21
The formulae apply equally on their face, but will have different impacts on airlines
depending upon their respective growth patterns post-2020. The approach here is also
noteworthy because the offsetting requirements relate to airlines, rather than States. Thus,
in addition to creating (indirect) differentiation among States, it may create certain intra-
State differentiation, i.e., airlines within a single State will have at least slightly different
growth rates and therefore different offset requirements.
3.2 Five Groupings
The Kigali Amendment, adopted on October 15th, 2016, adds HFCs to the
substances controlled under the Montreal Protocol on Substances That Deplete the Ozone
Layer. HFCs are factory-made chemicals used primarily in air conditioning, refrigeration,
and foam insulation; they are also potent greenhouse gases. The Montreal Protocol was
considered the appropriate vehicle for addressing HFCs because, among other things, the
rise in the usage of HFCs – a substitute for ozone-depleting substances -- was a direct
result of the phase-out of chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons
(HCFCs) under that Protocol.
The Montreal Protocol regime took account of different national circumstances
decades before the adoption of the HFC amendment. The original 1987 Protocol provided
a grace period for so-called “Article 5” Parties. In order to qualify for this flexibility,
Article 5 requires a Party to meet a double requirement:
o It must be a “developing country.”22
o Its per capita consumption of CFCs must be under a specified threshold.23
21 See paragraph 11 of the 2016 ICAO Resolution. 22 The Montreal Protocol Parties have adopted a list of “developing countries” for purposes of the Protocol.
See http://www.ozone.unep.org/en/handbook-montreal-protocol-substances-deplete-ozone-layer/1398.
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The original Protocol, as well as subsequent amendments adding new controlled
substances, all differentiated between the commitments of non-Article 5 Parties (i.e., all
Parties other than those eligible for a grace period) and Article 5 Parties.
Negotiators of the HFC amendment intended to follow this pre-existing structure.
However, as negotiations on the HFC schedules and baselines proceeded, it became clear
that different national circumstances within both the Article 5 and non-Article 5 groups
would make it difficult, if not impossible, to reach a sufficiently ambitious common
baseline/schedule for each group. In other words, while it was theoretically possible for
each group to have a common baseline/schedule for all the States within that group, it
would have reflected a least common denominator that was environmentally inadequate.
The alternative was to maintain, for most Parties, a higher level of ambition but to permit
certain deviations within each group.
The resulting amendment provides as follows:
o For non-Article 5 Parties (i.e., all Parties other than Article 5 Parties), the
commitments are generally, relative to a 2011-2013 baseline: to reduce
production and consumption of HFCs by 10% by 2019; and, following a series of
interim steps, to reduce production and consumption by 85% by 2036.24
o For Article 5 Parties, the commitments are generally, relative to a 2020-2022
baseline, to freeze production and consumption by 2024; and, following a series
of interims steps, to reduce production and consumption by 80% by 2045.25
Within the category of non-Article 5 Parties, there is additional time, as well as
increased baselines, for certain specified Parties. These Parties asserted during the
negotiations that they would be unable to meet the otherwise applicable schedule and
baseline. The grouping of Parties entitled to increased flexibility (which includes Belarus,
23 See Article 5.1 of the Montreal Protocol,
http://ozone.unep.org/Publications/MP_Handbook/Section_1.1_The_Montreal_Protocol/index.shtml. 24 See Article 1 of the Kigali Amendment, amendments to Article 2 of the Montreal Protocol. 25 See Article 1 of the Kigali Amendment, amendments to Article 5 of the Montreal Protocol.
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the Russian Federation, Kazakhstan, Tajikistan, and Uzbekistan) is not based on criteria.
Rather, it is ad hoc, based on a combination of self-selection and agreement of the Meeting
of the Parties to the inclusion of those Parties in the grouping.26
Within the category of Article 5 Parties, there are two different forms of additional
differentiation:
o Akin to the internal grouping within non-Article 5 Parties, there is a more
relaxed schedule (freeze in 2028, 85% reduction in 2047) for certain Parties that
asserted they could not meet the otherwise applicable schedule and baseline.
Again, the grouping (which includes Bahrain, India, Iran, Iraq, Kuwait, Oman,
Pakistan, Qatar, Saudi Arabia, and the United Arab Emirates) is not based on
criteria. Rather, the Meeting of the Parties endorsed the inclusion of the self-
selected countries on an ad hoc basis.27
o In addition, Parties with “high ambient temperature” (that therefore have a
greater need for refrigerants) can opt into a four-year exemption for certain
sectors where suitable alternatives do not exist. Unlike the other form of
flexibility, qualifying for this one is based on factual criteria that must be met.28
This group, which includes thirty-four Parties, partially overlaps with the one
directly above.
It will be interesting to see, when the Montreal Protocol addresses its next new
substance, whether the use of multiple groupings in the HFC context represented a
general Montreal shift toward more forms of differentiation (perhaps driven by the Paris
26 See Article 1 of the Kigali Amendment, amendments to Article 2 of the Montreal Protocol, and paragraph 1
of Decision XXVIII/2, http://conf.montreal-protocol.org/meeting/mop/mop-28/final-report/English/MOP-28-
12E.pdf. 27 See Article 1 of the Kigali Amendment, amendments to Article 5 of the Montreal Protocol, and paragraph 2
of Decision XXVIII/2. 28 See Article 1 of the Kigali Amendment, amendments to Article 5 of the Montreal Protocol, and paragraph
29 and Appendix II of Decision XXVIII/2.
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Agreement’s rejection of binary categories) or was a specific response to the particulars of
the HFC negotiation.
3.3 Self-Differentiation
The Paris Agreement, adopted under the Framework Convention, sets out a long-
term framework for addressing both mitigation of climate change and adaptation to
climate impacts. Key features include a goal of limiting the global temperature increase to
“well below” 2o C, as well as various mechanisms for achieving it, e.g., submission by all
Parties of emission “contributions,” regular updating of such contributions following
“global stocktakes,” and a robust reporting and review regime.
In general, the Paris Agreement is a highly differentiated agreement, but not in the
sense in which the Kyoto Protocol was differentiated.
As noted above, Kyoto set forth legally binding emissions targets for Annex I
Parties (those Parties listed in Annex I to the Framework Convention), while exempting
non-Annex I Parties from any new commitments (i.e., commitments beyond those in the
Framework Convention). Before and after Kyoto, many developing countries asserted that
the Framework Convention’s principle of “common but differentiated responsibilities and
respective capabilities” (CBDR/RC) mandated such a lopsided approach.
In contrast, the Paris Agreement moved well beyond Kyoto’s rigid categorical
approach. It includes an updated formulation of the CBDR/RC principle, tacking on
language (“in the light of different national circumstances”) that recognizes a continuum
of national situations. 29 It has no references to Annex I or non-Annex I Parties.
Commitments other than those related to financial and other forms of assistance apply to
all Parties.
Each aspect of the Agreement addresses differentiation in a distinct manner.
Regarding the core issue of mitigation, the Agreement provides for Parties’ mitigation
29 See, e.g., Article 2.2 of the Paris Agreement.
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efforts to be “nationally determined.”30 This approach, by permitting each Party to design
its contribution based on its own circumstances, was intended to be attractive to a wide
range of countries. It allowed States to agree to move beyond a Kyoto-style, bifurcated
regime by providing a broadly acceptable alternative.31
To date, over 190 States (representing roughly 99% of global emissions) have
submitted their plans to reduce or limit their emissions.32
3.4 Flexibility for a Sub-Group
The Paris Agreement’s transparency provisions, which address, inter alia, reporting
and review of progress toward meeting mitigation targets, provide for flexibility for “those
developing countries that need it in the light of their capacities” (emphasis added).33 The
double requirement for flexibility (i.e., a Party must both be a “developing” country and
need the flexibility in light of its capacity) is analogous to the Montreal Protocol’s double
requirement for Article 5 status, noted above, which also accords flexibility to a sub-set of
developing countries.
Unlike the Montreal Protocol, however, neither Paris prong is defined:
o While the Montreal Protocol Parties have agreed on a list of “developing
countries” for purposes of Article 5 flexibility, it is highly unlikely that the
Parties to the Paris Agreement would ever be able to agree on the scope of that
term – or would even attempt to do so. Dating all the way back to the
negotiation of the Framework Convention, there has been no agreed meaning or
30 See Article 4.2 of the Paris Agreement. 31 It was important to a few States to honor the Paris Agreement’s “nationally determined” approach in the
ICAO scheme in some way. It was agreed that, during the pilot phase, each State may choose between two
different variables in applying the formula for the offsetting requirement. See paragraph 11(e)(i). 32 See NDC registry at http://www4.unfccc.int/ndcregistry/Pages/Home.aspx; those States not yet Party to the
Paris Agreement have submitted intended NDCs at http://unfccc.int/focus/indc_portal/items/8766.php. 33 See Article 13.2 of the Paris Agreement.
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listing of “developed” and “developing” countries.34 A proposal during the
negotiation of the Paris Agreement to define such terms as equivalent to “Annex
I” and “non-Annex I” Parties failed.
o The Paris Agreement’s second prong (“…that need it in light of their capacities”)
is also distinguishable from the Montreal Protocol. While Montreal’s
requirement (annual per capita consumption of CFCs below 0.3 kg) is
quantitative and therefore extremely precise, the Paris Agreement’s “capacity”
requirement is not.
As such, the Parties will need to decide whether to base eligibility for one or more
types of flexibility on self-selection, applicable criteria, or some creative combination of
these or other factors. For example, a self-selection approach might be coupled with a
requirement that a Party include a justification for flexibility and/or an indication of how
and when it considers it will be able to meet the common standard in the future.
The Paris Agreement includes other interesting, flexibility-related features. As one
example, the mitigation article allows the least developed countries and small island
developing States to “prepare and communicate strategies, plans and actions for low
greenhouse gas emissions development reflecting their special circumstances.”35 While
such countries could have sought, and likely would have achieved, a full-blown
exemption from mitigation-related requirements (akin to that under the ICAO Resolution),
they did not seek such an exemption. On the contrary, many wanted to be among the
Parties expected to make a contribution; they simply sought more flexibility than the
article would have otherwise permitted.
34 See Section 2 of Biniaz, Comma But Differentiated Responsibilities, at
https://web.law.columbia.edu/sites/default/files/microsites/climate-
change/files/Publications/biniaz_2016_june_comma_diff_responsibilities.pdf. 35 See Article 4.6 of the Paris Agreement.
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4. SPECIAL CONSIDERATION
In addition to providing various forms of flexibility for LDCs, SIDS, and, in relation
to transparency, a sub-set of developing countries with limited capacity, the Paris
Agreement refers to other, unspecified forms of special consideration that do not relate to
commitments per se.
The Agreement contains several references to developing country Parties “that are
particularly vulnerable to the adverse effects of climate change” and the importance of
taking into account their needs. Such references appear in the preamble, as well as in
provisions related to adaptation and assistance.36
Consistent with the Framework Convention, 37 the concerns of Parties with
“economies most affected by the impacts of response measures,” e.g., oil-producing
countries, are also to be taken into consideration.38
The Agreement’s article on a mechanism to facilitate implementation of, and
promote compliance with, the Agreement calls for the committee established thereunder
to “pay particular attention to the respective national capabilities and circumstances of
Parties.” 39 This language, borrowed from the analogous article in the Minamata
Convention on Mercury,40 does not refer to any particular groupings or types of Parties
but will need to be taken into account as the Paris Parties elaborate the committee’s remit.
36 See, e.g., preambular paragraph 5 and Articles 7.2, 7.6, 9.4, and 11.1 of the Paris Agreement. 37 See Articles 4.8 and 4.10 of the Framework Convention. 38 See preambular paragraph 7 and Article 4.15 of the Paris Agreement. 39 See Article 15 of the Paris Agreement. 40 See Article 15.1 of the Minamata Convention,
http://www.mercuryconvention.org/Portals/11/documents/Booklets/Minamata%20Convention%20on%20Me
rcury_booklet_English.pdf.
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5. ASSISTANCE
Another way in which all three instruments take account of national circumstances
is by providing for various forms of assistance related to implementation. They do so in
somewhat different ways.
The HFC amendment, from a differentiation point of view, does not affect the
existing financial arrangements under the Montreal Protocol (which follow the Article
5/non-Article 5 distinction). As noted above, these categories are defined.
The ICAO Resolution provides for ICAO and its Member States to assist with
capacity-building and assistance related to the implementation of CORSIA, including with
respect to the establishment of registries and the “MRV” system (i.e., measurement,
reporting, and verification).41 The Resolution does not call upon any particular States to
assist or to receive assistance. Modalities will need to be developed.
The Paris Agreement’s commitments related to assistance (and corresponding
commitments to report on such assistance) are the only ones in that Agreement to reflect
differentiation based on “developed” and “developing” country status. With respect to
finance in particular, developed country Parties have a collective commitment to provide
resources in continuation of their existing obligations under the Framework Convention;42
other Parties are encouraged to provide such support,43 and developing country Parties are
the recipients of support.44
While the Framework Convention’s finance obligations apply to Parties “included
in Annex II,” an unambiguous listing, 45 the Paris negotiations involved a deliberate,
overarching move away from an approach based on the Convention’s Annexes. Thus, the
41 See paragraph 22 of the 2016 ICAO Resolution. 42 See Article 9.1 of the Paris Agreement. 43 See Article 9.2 of the Paris Agreement. 44 See Article 9.1 of the Paris Agreement. 45 See, e.g., Article 4.3 of the Framework Convention.
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Paris Agreement’s financial and other assistance provisions refer to the less clear category
of “developed country Parties.”46
6. OTHER PROVISIONS OF NOTE
As noted above, with the exception of the provision of assistance and reporting
thereon, the Paris Agreement takes a non-bifurcated approach to commitments. In this
regard, two mitigation provisions are noteworthy. Neither changes the non-bifurcated
nature of mitigation commitments per se (which apply to all Parties, with flexibility for
LDCs and SIDS), but both were important to one or more developing countries to reach
closure on the Agreement.
In addition to including a global temperature goal in the Agreement, 47 many
countries sought a long-term emissions goal and a shorter-term goal of peaking global
emissions. With respect to the latter, it was possible to reach agreement on an “aim” to
reach global peaking “as soon as possible” by adding the proviso “recognizing that
peaking will take longer for developing country Parties….”48
Some developing countries also expressed a concern that developed country
Parties, which had previously taken on economy-wide absolute emission reduction
targets, might use the “nationally determined” aspect of the mitigation article to walk
backwards, or “backslide,” from this type of target. They sought assurance that this
would not be the case. The United States and others were amenable to such an assurance,
provided it was hortatory, it made clear that the phrase “developed countries…taking the
lead” referred to a continuation of previous efforts (rather than constituted a new
prescription), it was specific to the issue of form of targets (not climate action more
46 See, e.g., Articles 9.1 of the Paris Agreement. 47 See Article 2.1 of the Paris Agreement. 48 See Article 4.1 of the Paris Agreement.
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broadly), and it included an exhortation for developing countries to move in that
direction.49
7. CONCLUSION
The Paris Agreement, and the ICAO and HFC instruments that followed shortly
thereafter, provide a wide range of methods for addressing different national
circumstances. Some reflect differentiation explicitly, while others do so implicitly. Some
rely on existing categories of States, both defined and undefined, while others create new
criteria and groupings for a particular purpose. Some allow States to create their own
differentiation (whether through determining their own participation or defining their
own commitments), while others take an approach based on agreed criteria.
While these approaches unquestionably helped enable negotiators to reach
agreement on the three instruments and may serve as inspiration for future negotiations, it
is of course a different question whether they will be effective in tackling the
environmental issues in question. There may be a point where the accommodation of
national circumstances goes too far, and the environmental objective of an agreement
would be better served with less accommodation, even if it means sacrificing the
participation of some States. Time will tell whether the proper balance was achieved in
each of the three instruments.
49 See Article 4.4 of the Paris Agreement, which provides: “Developed country Parties should continue
taking the lead by undertaking economy-wide absolute emission reduction targets. Developing country
Parties should continue enhancing their mitigation efforts, and are encouraged to move over time towards
economy-wide emission reduction or limitation targets in the light of different national circumstances.”